FSGB: “Service Need Differential” Posts Get a Bad Recruitment Ad

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According to the Foreign Affairs Manual, a ‘Service Need Differential’ [SND] is an allowance of 15 percent of base salary for employees serving in Historically-Difficult-to-Staff (HDS) posts with an at least 20 percent hardship differential and a standard two-year tour of duty, when the employee agrees to serve for a third year.  Some of the “at least 20 percent” hardship differential posts includes Albania, Azerbaijan, Egypt, a couple posts in China, and more. Djibouti, Ghana, Haiti, Afghanistan, CAR, Cuba, DRC, and some posts in India are in the 25 percent category. Afghanistan, Somalia, Bangladesh, Chad, Iraq, Pakistan are some of the 35 percent hardship posts. The hardship considered includes physical and social isolation; political violence, terrorism and harassment; medical and hospital availability; environmental conditions and sanitation; crime; climate; housing and infrastructure to name some. See more here.
The grievance case below concerns SND payments to a DS agent who served at one of these “historically-difficult-to-staff” posts.  Instead of the State Department just acknowledging that a mistake had been made in this case, the State Department made the argument that the grievant, “as a mid-level employee with several years of experience and facing his third overseas assignment” should have known better to ask the right questions. Whoa!  The agency is saying, it’s his fault, hey?
Footnote indicates that “with respect to the AO’s [Assignments Officer] indication of the candidate’s SND election in the assignment panel notes, the record indicates that the assignment panel notes did in fact include a comment that grievant’s SND decision was “pending.” However, grievant denies that he made that (or any) SND-related election, or that he communicated to his AO that he had elected to defer his decision until after arrival at post.”
The FSGB decided that the grievance appeal was sustained. The Department was ordered to reimburse grievant for SND he would have received from the date of his arrival at post, consistent with the provisions of the Back Pay Act. 5 U.S. Code § 5596.
Via FSGB Case No. 2020-050

HELD – The Foreign Service Grievance Board found that grievant met his burden to show that the Department failed to implement its Standard Operating Procedure SOP B-22 in the process of assigning him to a Service Need Differential (SND) post, a procedural error that resulted in harmful denial to him of SND payments for a period of time. The grievance was sustained.

CASE SUMMARY – Grievant accepted a handshake for assignment to an SND-designated post. He argued that in the process of assigning him to post, the Department failed to implement any of the “Assignment Procedures” specified in its relevant Standard Operating Procedure, SOP B-22. These included provisions that the Assignment Officer should contact grievant by email, provide information regarding the SND Program (including a specified “standard disclosure” covering SND options and the consequences of each), request the employee to indicate which SND option he/she elects, and relay that election to the assignment panel. The SOP advises that an assignment to an SND-designated post should not be made unless the foregoing provisions are carried out. The assignment panel, on the basis of notes of unspecified origin to the effect that grievant’s SND decision was “pending,” assigned him for a two-year tour-of-duty which made him ineligible for SND unless he should later request, and be granted, an extension of his tour to three years’ duration.

The agency denied that grievant had carried his burden of proving that his Assignment Officer (AO) failed to implement SOP B-22, but that even if the AO had failed to do so, grievant as an experienced, mid-level bidder, should not be absolved of any and all responsibility to understand the SND assignment procedures as they applied to him and to seek clarification and/or assistance if he were confused or concerned about the process. Further, the Department argued that in the agency-level grievance, it had provided to grievant (albeit on different grounds, which are abandoned in the instant grievance appeal), all relief to which he is entitled.

The Board found factually that the provisions of SOP B-22 had not been implemented by the Department in grievant’s case. The Board found further that the language of the Assignment Procedures of SOP B-22 is particularly directive, going as far as to advise that assignment to an SND post should not be made unless its stipulated provisions have been carried out. On the issue of harm, the Board found that the agency’s failure to implement the SOP constituted a significant procedural error which denied grievant the opportunity to receive information, counseling, and assistance stipulated in the policy before the panel assigned him to a two-year non-SND assignment which record evidence established he did not elect. The Board ordered payment of SND from the date of grievant’s arrival at post.

Background:

Grievant is an FP-03 Special Agent with the Bureau of Diplomatic Security (“DS”) who has worked for the Department since 2012. He is currently serving as an Assistant Regional Security Officer (“ARSO”) at post, his third assignment. The matters grieved in the instant action concern the manner of grievant’s assignment to, and extension at, post, as they impacted his receipt of SND payments.
[…]
On January 23, 2019, the Department issued cable , captioned “(PII) TMONE – ASSIGNMENT NOTIFICATION – PERSONNEL ASSIGNMENT ([grievant’s name and social security number redacted] FP-03, 2501, Special Agent) (“TM-1,” “the assignment cable”).3 Among other information pertaining to the position, the TM-1 noted that the assignment was for a 24-month tour with an estimated arrival date at post of August 2019. The cable contained the names of grievant’s Assignment/Training Officer [sic], Assignment Technician, and CDO as points of contact. The TM-1 did not identify the post as an SND- designated post, nor did it provide any information on the SND Program or how to participate therein.
[…]
After being informed, in a general manner, of the SND program by colleagues, grievant reached out on November 25, 2019, to post’s human resources officer (“HRO”) by email and requested “procedures to extend for one year and activate SND[.]”5
[…]
After repeated attempts by grievant to obtain a decision on his extension request and SND, on June 11, 2020, the Department finally issued a cable approving his extension for a third year at post. The extension approval cable noted that his election of a 36-month tour made him eligible for SND but did not provide further specifics such as what the effective date of SND eligibility was. Grievant subsequently was informed that the SND payments would commence as of the date of the extension approval cable, i.e., June 11, 2020.

On July 20, 2020, grievant filed an agency-level grievance, arguing that the Department’s failure to follow its pre-assignment SOP procedures for SND posts, compounded by subsequent delays in processing his extension request, improperly deprived him of a financial benefit (i.e., timely commencement of SND payments). As a remedy, he sought retroactive payment of SND (with interest) starting from the date of his arrival at post.

On September 24, 2020, the Department issued an agency-level decision, granting the grievance in part, and denying it in part. The deciding official (“DO”) stated that she was not persuaded that grievant had shown that the Department had failed to follow SOP B-22, finding further that grievant should not be “absolve[d] … of any and all responsibility regarding initiation of the SND process.” Grievance Appeal Submission (“Appeal”), Attachment 2 at 5. She therefore denied that part of the grievance. However, while noting grievant’s delay of over six months in initiating his extension request, the deciding official found that the Department had also let the request sit “idly” for three months. She consequently granted partial relief, directing that SND should be paid effective March 10, 2020, the date on which post issued its extension request cable.

State Department’s Oh, Dear/Even If Argument

The Department argues that record evidence shows that when the panel initially assigned grievant to post, the notes on which it relied stated that grievant’s SND decision was pending. This is consistent with the portion of the SOP “which outlines the employee’s right to delay his/her SND decision until after their [sic] arrival at post . . . .” Response at 5. According to the Department, grievant has failed to offer any evidence that the AO did not discuss the SND program with him or inform him about the elections. The absence of any comments in the “Remarks” section of his TM-1 assignment cable (which grievant advances as evidence that he was not properly advised of SND options before he was assigned to post) is not dispositive of a failure by the AO or CDO to implement the SOP.

The Department also argues that even if the AO and/or CDO had failed to implement the SOP (which the Department denies), “[grievant] should not be absolved of any and all responsibility regarding the initiation of his own SND process, especially if he sought to enjoy the benefit of receiving payments as soon as he arrived at post.”13

Also, if you’re going to a post no one wants to go, you should know more than your Assignments Officer?

The Department further argues that grievant, as a mid-level employee with several years of experience and facing his third overseas assignment, should have recognized that he was bidding on an SND post, and if he had any questions about SND bidding procedures, he knew or should have known to contact his AO and/or CDO for guidance and assistance. However, we find the details of the SND program are sufficiently arcane that the Department felt the need to emphasize the special responsibilities of human resources personnel. The language of SOP B-22, which grievant could not have been expected to know as it is not a familiar Department FAM or FAH provision, is quite particular. It bears repeating that the principal provisions of the Assignment Process fall to the AO and that the language is uniformly directive, not permissive. The SOP directs the AO to contact the employee by email, and one practical consequence of this requirement is to ensure that there be an official record of the communication. The SOP states that the purpose of the email is to explain the SND program, and to ask that he/she make an election among the various SND options (including no-SND and deferral of decision). The AO is further directed to “use the following standard disclosure when contacting the employee.” Half a page of stipulated language explaining the three SND options, the implications of each, and the FAM authority follow. As noted supra, the SOP states in bold typeface that “No assignment for an SND-designated post should be made” unless the AO has advised the employee of the SND options and their implications. The totality of the Assignment Procedures language bespeaks a particular intent that it be implemented to ensure that bidders such as grievant, regardless of experience, be informed uniformly of the program and its details. Accordingly, we find that grievant should not have been expected to be aware of the requirements of the SND program but should have been able to rely on the unique expertise of his AO and the requirements assigned to the AO to provide the information needed to make a choice before his assignment began. Having considered all of the resources to which the Department has pointed, we find that absent the AO’s briefing and support mandated by the SOP, the information in the other Department sources would not necessarily be sufficient, and might even have been meaningless, without the provision of that required context.

The Grievance Board Finds “Harm”

The Department argues that grievant has failed to prove harm resulting from any violation of the SOP, as he has not presented any evidence that he wished to elect, or would have elected, a three-year SND tour. Our considered view is that the language of the Assignment Procedures of SOP B-22 is of a particular character that bespeaks a concern that the procedures be implemented. That is understandable, inasmuch as the SND Program exists to incentivize candidates to bid on historically difficult-to-staff posts, and the SOP seems obviously formulated to ensure that candidates make informed choices among the unique options of the SND Program within a transparent process. In the instant case, the Department’s failure to implement the particularly directive provisions of the SOP denied grievant an opportunity that he would have otherwise had, and which the SOP seems clearly crafted to provide, to be contacted in writing (email), counseled on the basis of prescribed standard language regarding the SND options and implications, and to have his election solicited and transmitted to the panel as the basis for assignment; failing the foregoing, the SOP says that an assignment should not be made. The harm then to grievant was the lost opportunity.

We would like to make an observation about this finding. In finding that failure to implement the SOP deprived grievant of the opportunity to elect a three-year SND tour under the SOP Assignment Procedures, we do not seek to supply an answer to the counterfactual- hypothetical question of whether grievant would have elected a three-year tour if the AO had in fact implemented the SOP. We acknowledge that there is no contemporaneous evidence that he would have made that election prior to his arrival at post. Nonetheless, the harm we find is not that grievant was denied SND payments in accord with an inferred election to be paneled for three years, but rather that he was denied a procedural opportunity pointedly stipulated in the SOP when the AO failed to inform him about the SND Program and solicit his election after he accepted the handshake and prior to paneling him to a two-year non-SND tour. We see no alternative remedy to compensate grievant for this harm other than to order SND to be paid from the date of grievant’s arrival at post.

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FSGB Case: Revocation of Top Secret Security Clearance and Separation

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Via FSGB Case No. 2020-002:

Held – The Grievance Board found that because the security clearance of the charged employee had been revoked after final agency review, the Department of State established that the proposed separation of the charged employee was for such cause as will promote the efficiency of the Foreign Service.

Case Summary The charged employee, a Diplomatic Security Special Agent, was notified that his Top Secret security clearance was suspended for failure to cooperate in certain medical assessments. The charged employee’s clearance subsequently was revoked. The charged employee appealed the revocation to the Department’s Security Appeals Panel, which sustained the revocation after consideration of the written submissions of both the charged employee and the Department. Because a Top Secret security clearance is a condition of employment for the charged employee and because the revocation of his clearance was final, the Department proposed to separate the employee for cause. After a hearing on the issue, the Board concluded that the Department had established cause for the separation and evidence that the separation would promote the efficiency of the Service.

Background

On July 11, 2014, the Director of the Office of Personnel Security and Suitability, Bureau of Diplomatic Security (DS/SI/PSS), notified the charged employee, via memorandum that his “continued access to classified information was not clearly consistent with the interests of national security.”1 Accordingly, his Top Secret security clearance was suspended pending the outcome of “ongoing Department medical review.” 2 The charged employee held a position as an FS-02 DS Special Agent who required a Top Secret security clearance to perform his duties.

On October 7, 2015, the Deputy Assistant Secretary for Domestic Operations notified the charged employee by letter that his Top Secret security clearance was revoked. The employee was afforded 30 days to request a review of this decision. It appears that a review was requested because on March 13, 2019, the Principal Deputy Legal Adviser, on behalf of the Security Appeals Panel (Panel) notified the employee by letter that the Panel voted to sustain the decision of DS to revoke his Top Secret security clearance. This letter noted that the Panel had convened on February 19, 2019; that the charged employee had appeared and answered questions; and that the Panel took into account his responses, as well as written materials provided by the employee, his private counsel, DS.3

On August 20, 2019, the Director General notified the charged employee that the Department proposed to separate him for cause, under Section 610 of the FSA as amended, in order to promote the efficiency of the Service. The separation proposal stated that all Foreign Service positions require a Top Secret security clearance because all FS positions are “critical sensitive.” 4 Thus, because his security clearance had been revoked after all final reviews, the charged employee could no longer maintain a condition of his employment.

The charged employee responded by email on September 3, 2019 to the proposed letter of separation, stating, “Separating me from the Department does not seem right to me.” 5 The charged employee offered no other written or oral response to explain, rebut, or mitigate the separation proposal.

On January 6, 2020, the Department submitted the transmittal containing the separation proposal to the FSGB. On February 25, 2020, the Board conducted a pre-hearing conference (PHC) with the parties by telephone, during which the Board, the charged employee and the Department agreed upon procedural ground rules and a schedule of events prior to the hearing.6

The Department indicated at the PHC that beyond the documents submitted with the Department’s separation file in this case, the agency did not intend to submit any other exhibits or call any witnesses at the hearing. The charged employee indicated that he did not wish to call any witnesses or submit any documentation to the Board at the hearing. Thereafter, the parties reached an agreement on joint stipulations of fact to be presented at the hearing.7

On April 2, 2020, a hearing was convened by the Board on the separation proposal. The hearing was held telephonically, due to the CoVid 19 coronavirus pandemic, the President’s order to maximize the use of telework and the Governor of Virginia’s “stay at home” emergency order. At the start of the hearing, the Board advised the parties that it had determined that there was no need for a video-conferenced hearing because the parties had advised that they intended to offer no witness testimony. Neither the charged employee nor the Department objected to the use of a telephonic hearing process.

The Board found that a Top Secret security clearance is required for the employee’s position; therefore, the agency established that the charged employee failed to maintain a mandatory condition of employment. The Board concluded that the Department established cause for the separation on a single charge of Failure to Maintain a Condition of Employment and that separation of the charged employee will promote the efficiency of the Foreign Service.

3 According to the Principal Deputy Legal Adviser’s letter, “the Panel focused in particular on concerns relating to guideline I (‘Psychological Condition’). … [T]he Panel took note of the fact that [the charged employee] did not appear at the medical evaluation which [he] had agreed to undergo, [his] email of November 2, 2018, and [his] unwillingness during [his] appearance before the Panel to offer information that it could use to determine whether DS’s concerns had been mitigated.” The record does not reveal any additional information about the predicate for the security clearance suspension or revocation.

###

 

 

FSGB: A Tandem Couple Gets a Penalty, You Guess It — For Being Married

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One of the cases highlighted in the recently released FSGB Annual Report for 2020 is one relating to finances involving  an FS-06 Office Management Specialist (OMS)  married to a Diplomatic Security Special Agent. Two FS employees married to each other is called a tandem couple.
In FSGB Case No. 2019-024, the Board overturned the Department’s application of several Standard Operating Procedures to grievant and her tandem spouse that denied her per diem and related travel benefits during a four-month period of mandatory language training in Washington, D.C. between her first and second assigned posts overseas. The Board found that in addition to internal inconsistencies, the Standard Operating Procedures applied by the Department conflicted with applicable federal statutes and regulations that otherwise governed grievant’s right to receive travel and per diem benefits.
FSGB Case No. 2019-024 Summary

Grievant was an untenured Foreign Service officer of the Department of State (“Department,” “agency”) who was part of a tandem couple. Grievant was directed to her first assignment overseas, at the end of which, she planned to take Home and Annual Leave, followed by sixteen weeks of mandatory language training at the Foreign Service Institute (“FSI”) in Washington, D.C., in advance of an onward assignment. Grievant’s husband, also a Foreign Service officer, requested and was granted Leave Without Pay (“LWOP”) in order to accompany grievant on her first tour. The Department considers LWOP on paper to be an assignment to Washington, D.C. At the end of the LWOP period, grievant’s husband planned to return to Washington to serve in a bridge assignment and to attend work-related training, followed by the same sixteen weeks of mandatory language training and the same onward assignment.

At the end of grievant’s first tour, pursuant to a Standard Operating Procedure (“SOP”), the agency assigned grievant’s husband to “long-term” training at FSI. Under federal statutes and agency regulations, an officer who is in long-term training is authorized to receive locality pay and a Home Service Transfer Allowance but not authorized to receive per diem or an allowance for meals and incidentals. An officer is entitled to per diem and related expenses if he or she is on temporary duty of six months or less.

Another agency SOP requires both members of a tandem couple to be in the same status. Therefore, the Department assigned grievant to “long-term” training at FSI to match her husband’s assignment. Grievant requested and was denied a temporary duty assignment for the duration of her training. She filed a grievance challenging the agency’s application of SOPs that denied her the right to receive federally authorized per diem and related benefits.

The Department denied the grievance, arguing that because grievant was not contending that any of the applied SOPs was contrary to law, regulation, or collective bargaining agreement, she was not legally allowed to challenge them. The Department argued further that the federal benefits statutes and regulations upon which grievant relied did not apply to her because of the operation of the agency SOPs that required tandem couples to be in the same assignment status. The Department maintained that grievant did not establish that any of the SOPs were misapplied.

The Board reviewed the primacy of the federal legislation and regulations versus the agency SOPs and concluded that the federal statutes and regulation were controlling. The Board concluded that under the applicable statutes and regulation, grievant was entitled to per diem and related benefits, in the absence of application of the SOPs. The Board further found that the SOPs were internally inconsistent and conflicted with federal law and, therefore, grievant’s challenge to them was grievable. The Board concluded that grievant proved by preponderant evidence that the SOPs that were applied in this instance improperly prevented her from receiving per diem and other benefits to which she was entitled. The grievance was therefore sustained and the Department was ordered to reimburse grievant for the benefits she should have received under federal law.
[…]
Grievant points out that she and her husband did not have a local residence in the Washington DC area, therefore, they were obligated to spend money on housing, meals and incidentals. As proof that the SOPs were erroneously applied to her family, grievant cites the fact that the Department spent more money assigning her to Washington, D.C. than if she had been detailed to FSI in a TDY capacity. She states that the Department delivered to her rental property in Washington, D.C. her household effects (“HHE”), her privately owned vehicle (“POV”), and items that had been in storage; unpacked their belongings; and then repacked them less than six months later. Had the Department allowed her to receive per diem while on short-term training, her husband would not have received HSTA and they would not have received the HHE, POV transportation, or storage shipment.

The Board concluded that grievant, a member of a tandem couple, proved by preponderant evidence that the Department of State improperly denied her per diem and related benefits when it applied several Standard Operating Procedures that were at times internally inconsistent and that conflicted with applicable federal statutes and regulations that otherwise governed grievant’s right to receive travel benefits during a period of sixteen weeks of language training between two overseas.
Grievant argued that the Department’s SOP A-11a discriminates against tandem couples by treating them as a single entity, rather than two separate employees, each with their own respective, individual entitlements. She argues that there is no law or existing regulation that mandates that both members of a tandem couple remain in the same assignment status.
Grievant explained the practical difficulties of the policy application when she wrote to HR/CDA:

Since HR/CDA does review on a case-by-case basis and exceptions have been granted in the past, we do kindly ask guidance on how to pursue having [the denial of our request for per diem] reviewed. …. [W]e have been told we may have to be assigned as a PCS [Permanent Change of Station] vs TDY. … The arbitrary interpretation of an SOP, rather than a ruling that is backed by the FAM, is going to create undue hardship on our family and unnecessary expenses for the State Department by having to receive all of our HHE, storage, POV, etc, only to have it packed back up again within 4 months. Shipping our HHE from to DC where it will be unpacked then repacked, then shipped again to is going to cost significantly more than having it held in temp storage in ELSO [European Logistical Support Office] then sent directly. I understand that we have the option to pay to keep our belongings in storage, but that forces us into a furnished apartment for 4 months. I contacted Oakwood, and a 2 bedroom apartment will cost over $23,000 for this time frame, which is just absurd. Even with DC locality and HSTA that is an extreme amount of money that I have to pay to attend required training.

Note that a hypothetical FS-06/1 employee earns approximately $42K. A 4-month rental of a furnished apartment at $23K would cost more than half that employee’s annual salary.
FSGB’s take on SOPs vs. Federal Statute:

“… where there is conflict between a state law and a federal one, the Supreme Court has stated that the federal statue must take effect. It follows, then, a fortiori, that where there is conflict between a unilaterally established agency procedure and a federal law or regulation, the procedure must equally give way to the operation of a federal statute “where it is impossible … to comply with both.” Id. Here, the Department could not comply with the federal per diem statutes, as grievant requested, solely because of its application of legally inferior SOPs. We conclude that this was clear error.”

16 Weeks is a “Long Term Assignment”, Who Knew?

“We further find that by mandating that grievant was on an assignment to long-term training in Washington, D.C., when she was in fact in training for no more than sixteen weeks, she did not have a home in Washington, she had not previously been assigned there, and she was mandated to take language training for her onward assignment overseas, the Department violated its own SOPs. Specifically, the Department violated the provision in SOP A-11a that, “The Department’s policy is to ensure that no advantage or disadvantage accrues to any employee through the assignment process on the grounds of marital status.” (Emphasis added). Application of this SOP put grievant at a clear disadvantage because she was not permitted to receive the benefits of the federal statutory per diem and M&IE benefits, solely because she was part of a tandem couple. The record is clear that had grievant not been married to her husband, she would have been entitled to seek a TDY assignment to Washington for her short-term training.

A tandem married couple penalty:

“… the Board finds that the purpose of the SOPs applied in this instance was to prevent any one employee from receiving duplicate benefits, such as per diem and locality pay, or employee benefits and family member benefits. Nothing in the SOPs suggests that the purpose was to prevent one employee from receiving certain benefits on the basis solely that the employee was married to another employee who received different benefits. If this were the case, then the procedures would advantage unmarried, but cohabiting, couples over tandem married couples.

Here’s the nutty part. When the FSGB became aware that AFSA was requesting a change in the very policies at issue in this case, it asked the Department about the proposed revision. The Department told FSGB:

Please find attached a copy of the revised SOP A-11a, which was implemented by the Department in December 2019 and is currently being announced within the Department. … As the revisions to SOP A-11a were implemented after [grievant’s] assignment in this case, the revisions have no impact on the application of the prior version of SOP A-11a to [her]. In her appeal, [grievant] contends that SOP A-11a should not have been applied to her and that she should have been placed on TDY status, that SOP A-11a was contrary to law, and that SOP A-11a discriminated based on marital status. The revision of SOP A-11a does not validate any of the arguments raised in [grievant’s] appeal.

Holymoly macaroni! It does, good heavens, it does validate all! Exclamation points added !!!!!!!!!!!!!!!!!!!!!!!!
Seriously, how does one learn to think with such mental and linguistic contortions?
We could almost imagine the FSGB Board members shaking their heads in disbelief when it said:  “The Department concedes that the policy has changed officially, precisely as grievant requested in her case. Essentially, the Department argues that the revised policy should not be applied retroactively and, therefore, grievant’s appeal should be denied.”
FSGB cases cannot be read online without downloading the files.  Files are available here.

 


 

 

FSGB Annual Report 2018: Judicial Actions Involving Board Rulings

 

The following is excerpted from the Foreign Service Grievance Board Annual Report 2018. This is a good time to remind folks that while names/posts and identifying details are typically redacted from the Record of Proceedings (ROPs) routinely posted in the publicly available website fsgb.gov, once the case is filed in federal court, the records are usually publicly accessible and are unredacted (unless the case is sealed).

As described in last year’s report, USAID OIG had recommended that the grievant in FSGB Case No. 2012-057 be separated for cause. After two hearings, the Board approved the agency’s decision. The grievant appealed to the U.S. District Court for the District of Columbia. In a decision issued October 12, 2018, the court upheld the Board’s decision on cross-motions for summary judgment. The grievant has appealed to the U.S. Court of Appeals for the D.C. Circuit, challenging the District Court’s and Board’s construction of section 7(b) of the IG Act, which protects the confidentiality of employee informants.

In FSGB Case No. 2014-018, the grievant had requested a waiver of collection of a substantial overpayment of her deceased mother’s survivor’s annuity. The Department contended that she was not entitled to consideration of a waiver because the overpayment was made to her mother’s estate; under Department regulations, estates are not entitled to waivers. The Board concurred and grievant appealed. In a decision issued January 19, 2018, the D.C. district court found that the regulation denying waivers to estates was valid, but that the FSGB had erred in determining that the overpayments were made to the mother’s estate rather than to grievant as an individual. The court remanded the case for the Department and the Board to decide the request for the waiver on its merits. The waiver request is currently pending with the Department.

The grievant in FSGB Case No. 2015-016 filed a complaint in the U.S. District Court for the District of Columbia in 2017 against the Department and his former rater and reviewer requesting monetary damages related to the Board’s denial of his grievance. He had contested two EERs and a low ranking. The district court dismissed the complaint as untimely in a decision issued March 30, 2018. The U.S. Court of Appeals for the District of Columbia Circuit affirmed that decision on December 28, 2018.

The grievant in FSGB Case No. 2013-005 contended that he was deprived of certain benefits, such as promotion consideration, during a five-year assignment to an international organization. The Department found him ineligible for the benefits because his assignment to the organization was effected through a “separation and transfer” agreement, rather than a “detail.” The Board affirmed the Department’s decision and the United States District Court for the District of Colombia upheld that decision on appeal in a decision issued in 2016. The grievant had also appealed the Board’s decision in a second, related, case, FSGB Case No 2014-024, in which he had claimed certain benefits based upon his separation and transfer and subsequent reemployment with the Department. The Board dismissed his second grievance on the grounds of claims preclusion. In a decision issued March 14, 2018, the district court concluded that the Board’s decision was neither arbitrary and capricious nor contrary to law and dismissed his claims. The grievant appealed both decisions to the United States Court of Appeals for the District of Columbia Circuit, and that matter remains pending.

The grievant in FSGB Case No. 2017-014 was denied tenure and scheduled for separation from the Foreign Service. Consequently, the Department ordered her to leave her overseas post and assigned her to a position in Washington, D.C. The grievant filed a grievance with the Department challenging her transfer on several bases. The Department denied the grievance, and the grievant appealed to the Board. The Board denied all of grievant’s claims. It further found that, since no statute or regulation had been violated, it lacked jurisdiction to overturn an assignment decision. The grievant appealed the decision to the U.S. District Court for the District of the Virgin Islands, St. Croix Division. In a decision issued September 24, 2018, the court affirmed the Board’s decision.

Decisions were issued this year in two other cases filed by the same grievant, stemming from the same sets of circumstances but not involving appeals of Department or Board grievances. The grievant filed a case under the Equal Pay Act of 1963 in the U.S. Court of Federal Claims alleging gender-based discrimination in pay and benefits. She claimed that the Department discriminated against her by paying her less and providing her with fewer benefits than a similarly-situated male employee. The court initially dismissed the case, finding that it lacked jurisdiction because the same appeal was pending in another court at the time she filed. However, that decision was overturned by the circuit court and the case was remanded to the Court of Claims. The grievant also filed two identical complaints in the U.S. District Court for the District of the Virgin Islands, St. Croix Division, alleging discrimination and retaliation by the Department under the Age Discrimination in Employment Act. In both cases, the court dismissed all but one of the claims. The grievant also filed a complaint in the U.S. District Court for the District of Columbia alleging nearly identical discrimination and retaliation by the Department under Title VII of the Civil Rights Act of 1964. Therefore, the U.S. District Court for the District of Columbia has stayed its proceedings pending a decision in the U.S. District Court for the District of the Virgin Islands case.

An appeal of the Board’s 2017 decision by the State Department and USAID/OIG in another long-running case remains pending in the D.C. District Court following briefing of crossmotions for summary judgment in Civil Action No. 18-cv-41 (KBJ). As described in previous annual reports, the grievant in FSGB Case No. 2013-031 contested the decision to calculate his retirement annuity based on the application of a pay cap on his special differential pay that had not been applied when his salary was paid. In 2014, the Board initially upheld the agency’s decision. On grievant’s appeal, the district court in Civil Action No. 14-cv-1492 (KBJ) vacated the Board’s decision and remanded the case to the Board for further review. On remand, the Board in FSGB Case No. 2013-031R and No. 2016-030 issued a decision granting the grievant calculation and payment of his annuity that he sought. The Board denied the Department’s request for reconsideration of that decision. The Department and USAID/OIG jointly appealed the Board’s decision on remand to the district court in Civil Action No. 18-cv-41 (KBJ).

The 2015 Annual Report reported that the grievant filed an appeal of the Board’s decision in FSGB Case No. 2014-003 in Federal District Court, District of Colombia, claiming that the Department violated the Americans with Disabilities Act and Rehabilitation Act when it separated her. That appeal is still pending.

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FSGB finds no merit in argument that @StateDept has “unfettered discretion” to grant or deny SNEA benefit

Via FSGB Case No. 2018-016:

“The Department next argues that its granting a SNEA under section 5924 is “discretionary,” and in any event must be paid in accordance with the DSSRs. As we have previously stated, the prior authorization the grievants sought, for reimbursement after their arrival at post, is fully consistent with the DSSRs. Further, we find no merit to the argument that the Department has unfettered discretion under section 5924 to grant or deny a SNEA benefit to employees in any way it may see fit. Rather, law and regulation must limit its discretion.”

Via giphy.com

Is this how you keep a potentially embarrassing case away from public eyes?

 

Via FSGB 2018 Annual Report:

In FSGB Case No. 2018-001, an FS-01 appealed a 3-day suspension on a charge of Conduct Unbecoming. The charge arose from allegations that he facilitated the inappropriate hiring of a former political appointee. Grievant contends that, although he was the hiring official, all of his actions were at the direction of senior bureau staff and in consultation with the bureau’s administrative staff. The case was settled and withdrawn.

*

FSGB Case No. 2018-001: On March 1, 2018, the Foreign Service Grievance Board received a Notice of Withdrawal from grievant’s attorney, {Attorney’s Name}, stating as follows: “Grievant, {Grievant’s Name}, through counsel, {Attorney’s Name}, hereby withdraws his grievance appeal filed on January 3, 2018, with prejudice. The parties have settled their dispute.”  The Notice of Withdrawal has been entered in the record of proceedings, and the record is now closed.

We understand that because this case was settled and withdrawn there is no actual FSGB decision in the case; thus, there is no publicly available record of the case. Presumably State/HR/Grievance has the paper trail and the finer details, but for now, because the case was settled we won’t know who is the ex-political appointee, which bureau was involved, which senior bureau … er staffers were responsible, or the terms of the settlement.  One wonders if the State Department settled this case because it did not want the details in public view, or if grievant has the “receipts” that could get higher ups in a specific bureau in trouble?

via tumblr.com

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FSGB Case: Employee’s Mental Health Issues and Performance

 

Via FSGB Case No. 2016-043:

The Department denies that grievant’s 2013 EER is factually inaccurate, falsely prejudicial, or biased, and cites a series of interviews with her supervisors, subordinates, and colleagues to dispute her contentions about the unfairness and inaccuracy of the EER. In response to grievant’s allegation that she was inadequately counselled on the deficiencies described in her EER, the agency contends, based on statements from grievant’s rating officer, that she was in fact counselled, both formally and informally, during the rating period. With respect to grievant’s claim that she was bullied, ostracized, and treated unfairly by the Embassy community, which she alleges triggered her trauma symptoms, the Department provided input from the Ambassador, grievant’s rating officer, and the General Services officer, all of whom disputed grievant’s allegations.

In response to grievant’s claim that she suffered from then-undiagnosed mental health issues (including anxiety, depression and trauma symptoms), the Department counters with quotes from grievant’s rating officer who stated that “from the time REDACTED arrived at post, she appeared unhappy and talked of being stressed.” The rater recalled that some of her stress “appeared to be related to prior postings (including REDACTED, REDACTED, and REDACTED),” and said that “upon arrival she talked to me about how stressful she had found the 6 months of FSI [Foreign Service Institute] REDACTED language training, and told me she urgently needed a break.” The Department was not persuaded that grievant’s poor performance resulted from the medical condition with which grievant was diagnosed after she left REDACTED. The Department put less credence in the medical statement grievant provided from her post-REDACTED therapist, stating “grievant has not provided medical documentation substantiating her alleged diagnosis. Nor does grievant’s counselor provide such documentation; the counselor merely states that ‘I believe PTSD is the primary diagnosis.’”

FSGB BOARD:

In all grievances except those involving discipline, the grievant bears the burden of proving that her claims are meritorious.3 This case turns on whether the grievant’s EER is falsely prejudicial, and, whether any documented underperformance can be attributed to the grievant’s post-REDACTED diagnosis of mental health disorders. The Board notes that the record in this case is, unfortunately, sparse with respect to a diagnosis of grievant’s mental health issues. While the Department is correct in noting that grievant’s counselor noted only that “I believe that PTSD is the primary diagnosis,” the Department provides no opposing medical information whatsoever, relying solely on the observation of grievant’s Foreign Service colleagues in REDACTED.  Grievant’s licensed mental health counselor did in fact provide a detailed listing of grievant’s problems in REDACTED, and concluded that grievant suffered mental health disorders as a result thereof. We note that grievant’s counselor saw the grievant regularly over a period of more than a year. On balance, therefore, the Board is obliged to find grievant’s medical evidence preponderant. After careful examination of the ROP, the Board concludes that grievant’s 2013 EER cannot stand, because her performance during that period was likely influenced by her depression, anxiety, and trauma symptoms. We base our conclusion largely on the detailed statement submitted by grievant’s Licensed Professional Counselor (LPC), with whom grievant had at least 38 therapy sessions between April 2014 and August 2015, and to whom grievant was referred by a prior therapist who had diagnosed her with anxiety, depression, and trauma symptoms. In the Board’s view, this statement, written by a mental health professional who knows the grievant well, is entitled to more weight in the decision process than that of grievant’s rating and reviewing officers, or her colleagues at post. We also note that the Agency provided no contradictory medical opinion, or any information of a medical nature.

In her August 18, 2015, statement, grievant’s LPC states, in relevant parts:

She was referred to my center, the National Center for the Treatment of Phobias, Anxiety, and Depression in Washington DC by a previous therapist who had diagnosed her with anxiety, depression, and Trauma Symptoms. She also sees REDACTED , MD for medications at this center. I believe PTSD is the primary diagnosis and the depression and anxiety are symptoms of the PTSD. REDACTED described primitive and unsanitary living conditions that caused her to feel unsafe. She reported unsanitary water in her apartment, unsafe electrical problems, and other living conditions that prevented sleep, peace and support. While in the workplace, she felt she was targeted, bullied and marginalized. Because of the combination of insecurity in her home, insecurity in her workplace, and the stress of an extremely stressful foreign environment, began to suffer from PTSD symptoms. She became depressed and hopeless, developed panic attacks, difficulty sleeping, developed nightmares, and generalized anxiety.

It is my understanding that her evaluations from this period faulted her for having strained relations with her subordinates, program participants, and peers in Washington, as well as difficulty making contacts in the REDACTED media and discomfort speaking to media on the record. I did not observe REDACTED during this period, so I do not have an opinion on the accuracy of these criticisms, but, if true, each would in my opinion be related to the various symptoms of her previously-undiagnosed and untreated anxiety, depression and trauma symptoms. 

I do not believe a patient can work with very seasoned therapists or psychiatrists and hide character issues as described in the accusations towards REDACTED. However, I do believe that it would have been difficult, if not impossible, for REDACTED , while suffering the effects of PTSD, to maintain a high level of diplomacy, an ability to connect well with co-workers, and to utilize PR skills to connect at work well with the media.

Nightmares, panic attacks, depression, extreme fear, feelings of hopelessness and helplessness and not feeling respected or supported would prevent most people from working at a level of excellence which, to my knowledge, had been true for REDACTED before her REDACTED posting. I believe REDACTED ’s behavior while in REDACTED was mischaracterized at most and misunderstood at the least. This is my opinion based on working with many patients who suffer from trauma-related symptoms. 

We find the foregoing LPC statement to be a detailed professional observation, based on relatively long-term (at least 16 months’) observation of grievant, and thus accord it more weight than we do the statements offered by the Department from non-medical providers (her rater, the General Services officer (GSO), the Ambassador, and grievant’s subordinates). While the statement does not contain a definite diagnosis of grievant’s symptoms, we note it is from a licensed medical professional, and is countered by the Department only with comments from non-medical co-workers and colleagues.

THE BOARD’S DECISION:

Grievant has shown by preponderant evidence that she suffered from the effects of then undiagnosed mental health conditions including anxiety, depression, and potential Post Traumatic Stress Disorder (PTSD) during her tour in REDACTED and accordingly, her Employee Evaluation Report (EER) for 2013 must be expunged and replaced in her Official Personnel File (OPF) by a standard gap memorandum. Grievant has shown that she suffered from these conditions and that they affected her performance in ways that contributed to the negative statements in her EER. If she is not promoted by reconstituted Selection Boards for the years 2014 -2017, her Time in Class shall be extended by one year.

One more: “as a general matter, an EER is inherently false, even though it accurately describes an employee’s performance, if that poor performance was the result of the employee’s serious illness.”

Court on FSGB tenure denial case: “ignores significant parts of record and fails to connect rationally”

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The 2016 Annual report of the Foreign Service Grievance Board only mentions the Aragon v. Tillerson case in passing as follows:

Daniel P. Aragon, a former Foreign Service career candidate at the Department of State, filed an appeal on January 29, 2016, with the District Court for the District of Columbia, challenging the Board’s denial of his appeal in FSGB Case No. 2014-034. Mr. Aragon had contested two EERs and the withholding of tenure and involuntary separation that flowed from those EERs.

This case was filed in 2016. Per Federal Rule of Civil Procedure, the Court substituted as defendant the current Secretary of State,Rex Tillerson, for former Secretary of State John Kerry.

Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia has harsh words for the Foreign Service Grievance Board (FSGB) on this specific case:

The plaintiff, the Foreign Service, and American taxpayers have invested heavily in the plaintiff’s career as a Foreign Service officer, and the FSGB does a disservice when it renders a decision that ignores significant parts of record and fails to connect rationally the underlying facts to its ultimate conclusion. This is what the FSGB did in finding that the May and November 2013 EERs were not falsely prejudicial. For these reasons, the FSGB’s decision is vacated with respect to its conclusion that these EERs were not falsely prejudicial, and this action is remanded to the FSGB for further proceedings consistent with this Memorandum Opinion.21

Quick summary of the case:

The plaintiff, Daniel Aragon, served as an entry-level Foreign Service Officer with the U.S. Department of State for five years, until he was denied tenure and involuntarily separated in 2014. The reason for the tenure denial arose during the plaintiff’s second overseas assignment, when the plaintiff was responsible for supervising an employee, whose undisputed pattern of insubordination, tardiness, abuse of leave policies and performance issues would, in many work environments, warrant termination of employment. Instead, the plaintiff’s management efforts, which were ultimately successful, to bring this employee into compliance with basic workplace rules, has led to the plaintiff’s own termination from a job he “love[s].” AR at 354.1

The plaintiff filed the instant action against the Secretary of State, in the Secretary’s official capacity, after the State Department denied his grievance contesting the performance evaluations on which the tenure denial was predicated, and the Foreign Service Grievance Board (“FSGB”) upheld the State Department’s decision.2 Alleging that the FSGB’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), the plaintiff seeks, inter alia, an order directing the State Department to remove from his personnel file the two performance evaluations on which the denial of tenure was predicated, Compl., Relief ¶ 3, ECF No. 1; an order rescinding the tenure decisions predicated on those evaluations, id.; an order directing the State Department to reinstate the plaintiff retroactively, with back pay and benefits, id. ¶ 4; and an order directing the State Department to place the plaintiff in the same promotional class he would be in had he received tenure in the winter of 2013, id. ¶ 5. Pending before the Court are the plaintiff’s motion for summary judgment, see generally Pl.’s Mot. Summ. J. (“Pl.’s MSJ”), ECF No. 12, and the Secretary’s cross-motion for summary judgment, see generally Defs.’ Mot. Summ. J. (“Defs.’ MSJ”), ECF No. 14. For the reasons set out below, the plaintiff’s motion for summary judgment is granted in part and denied in part, without prejudice, the Secretary’s cross-motion for summary judgment is denied without prejudice, and this action is remanded to the FSGB for further proceedings.

What the what? Excerpt from court’s opinion:

[T]he record shows that the CPS [cultural program specialist FSN] had an “apparent pattern” of abusing sick leave and would disappear from work for extended periods of time. Id. at 42; see also id. at 335 (describing the manner in which the CPS “took sick leave immediately before or after a block of annual leave[, which] suggest[ed] that she was abusing sick leave in order to augment her annual leave”). This apparently lax office culture was extant before the plaintiff’s arrival, leaving him with the task of changing that culture to ensure that employees, such as the CPS, on the U.S. Government payroll complied with the most basic work performance rules of coming to work on time and providing notice of absences.”

Lip service to evidence

The FSGB paid this evidence lip service in the section of its decision summarizing the plaintiff’s claims, see id. at 405, but the Board did not refer to it, let alone grapple with it, in deciding that the AFI concerning the counseling session was not falsely prejudicial for completely omitting any reference to the events giving rise to the counseling session or the context, in which even before the plaintiff’s arrival, the Dubai office had such deficient management that the CPS was able to develop and engage in a pattern of poor work behavior.

Fails to connect rationally …

That prior agency management in Dubai allowed such poor work habits to persist likely made the plaintiff’s effort to enforce the most basic workplace rules more difficult and makes it all the more impressive that the plaintiff was, apparently, ultimately successful in reining in the CPS’s behavior. See, e.g., AR at 42 (noting that after the plaintiff spoke with the CPS about her “apparent pattern of abusing sick leave, . . . there were no further incidents of suspected leave abuse during the rating period”). As the FSGB itself has noted, a supervisor will “almost inevitabl[y]” have “a difficult relationship” with an employee when the supervisor “is trying to effect changes” in the employee’s behavior. FSGB Op. 2006-052 at 13.

Read in full below:

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@StateDept Cites 10 Cases Where Employees Were Placed on Admin Leave, See #10

Posted: 12:41 ET
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3 FAM 3464 defines “Excuse Absence” (commonly known as administrative leave) as absence from duty administratively authorized or approved by the leave-approving officer and does not result in a charge in leave of any kind or in loss of basic salary. 3 FAM 3464.102 also provides for Conduct-Related Excused Absence “Excused absence may be directed in rare circumstances and when authorized as provided by 3 FAH-1 H-3461.2 when an investigation, inquiry, or disciplinary action regarding the employee’s conduct is pending, has been requested, or will be requested within 2 workdays, and the continued presence of the employee in the workplace may pose a threat to the employee or to others, or may result in loss of, or damage to, U.S. Government property, or may otherwise jeopardize legitimate U.S. Government interests.”

According to grievance records, during the discovery phase of FSGB No. 2015-029, the State Department provided grievant with a spread sheet identifying 10 cases in which employees were placed on administrative leave pursuant to 3 FAM 3464.1.-2.

Via FSGB:  We quote the stated reasons for the administrative leave as follows (with numbering added):

  • 1) Ongoing investigation. Employee admitted to taking extra passport applications from courier beyond allowed quota. . . . (3 separate cases);
  • 2) Arrest based on violation of protective order;
  • 3) Allegations of misconduct and alcohol consumption while at US Embassy;
  • 4) Employee’s clearance suspended – reasons unknown. Employee failed to meet DS for compelled interview;
  • 5) By letter dated 11/14/13, PSS notified her of suspension of clearance. . . . ;
  • 6) Security Clearance suspended by DS. . . . ;
  • 7) DS investigating employee fraud/impersonating supervisor to obtain federal housing benefits;
  • 8) Arrested on child pornography charges. (no indication employee used USG equipment);
  • 9) Incident resulting in death of Ambassador and others. Admin leave while office evaluates appropriate action (3 separate cases);
  • 10) Employee investigated based on allegations of the rape of 2 women.

Grievant lacks any basis for asserting that the AL granted in these other cases did not serve USG “interests.” Those interests are broad, going far beyond the obvious trauma and safety issues as to other employees. Realistically, all 10 cases (based on the brief descriptions given in the record) invoked some type of governmental interest that was rather self-evident, e.g., stopping an employee from impersonating a supervisor or investigating the actual suspension of someone’s security clearance.21 The bottom line is that the Department’s decisions to grant AL to other persons who were subject to various investigations is not even pertinent to the grievant, [REDACTED].

The FSGB finds that “administrative leave is not an entitlement that would provide the grievant with certain safeguards, but is instead a prerogative administered by management to meet the needs of the Service.”

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Sexual Assault Related posts:

 

Administrative Leave: A Prerogative to Meet the Needs of the Service, Not/Not an Entitlement

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Unlike the MSPB, the Foreign Service Grievance Board does not identify its precedential decisions but the case below on administrative leave is worth noting whether this is precedent setting or not. In this case, FSGB says that administrative leave is 1) not an entitlement, 2) that it is a prerogative administered by management to meet the needs of the Service, 3) and that Department was not obligated to provide grievant with an explanation for its decision to deny admin leave.

Via FSGB:

Grievant is a Diplomatic Security Service Special Agent who became involved in an altercation with a local civilian while off duty during a temporary duty (TDY) assignment in Honolulu. This incident resulted in the discharge of his service weapon and the death of the civilian. The State of Hawaii brought criminal charges against grievant, and the Department of Justice (DOJ) declined to represent him, finding that the incident was not the consequence of an official act or performance of his official duties.

For unspecified reasons, the Department placed grievant on administrative leave twice: first, in the aftermath of the shooting, when he was under judicial order not to leave Honolulu, and second, during the pendency of his first trial in 2013 (which resulted in a hung jury). Facing a second trial in 2014, grievant asked the Department to place him on administrative leave again. The Department ultimately denied this latter request and upheld its decision in an agency-level grievance.

Grievant acknowledged that under regulation (3 FAM 3464) the Department has discretionary authority to grant or deny administrative leave. He argued that although the Department is not compelled to grant his request, the weight of both equity and precedent suggest that it should do so. He asserted that the circumstances under which the Department earlier took the initiative to place him on administrative leave are substantially the same as those for which he later requested administrative leave (i.e., for his second trial) and arise from the same incident. He contended that if the Department is to “change” its decision regarding whether to grant him administrative leave, it must provide him an explanation of why it did so.

As the instant appeal does not concern discipline, grievant bears the burden of demonstrating that his grievance is meritorious. We found that grievant had failed to demonstrate that the Department had any obligation to approve his request for administrative leave or that it had violated any law or regulation in not doing so. Finally, we found that the facts of this case do not establish that the Department “changed” its decision; rather, the various decisions it made regarding whether to place grievant on administrative leave were separate, independent decisions. The Board concluded that the Department was not obligated to provide grievant with an explanation for its decision to deny AL. The appeal was denied in its entirety.

Read in full below:

 

Related posts: